OpenJurist

857 F2d 1479 United States v. Fonseca-Martinez

857 F.2d 1479

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Enrique FONSECA-MARTINEZ, aka Enrique Martinez, Defendant-Appellant.

Nos. 87-3119, 87-3120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1988.
Resubmitted Sept. 6, 1988.
Decided Sept. 6, 1988.

Before HUG, FLETCHER and NELSON, Circuit Judges.

1

MEMORANDUM*

2

Enrique Fonseca-Martinez appeals his conviction of possession with intent to distribute a controlled substance. We withdrew the case from submission pending our review of the transcript of the in camera examination the district court conducted of the confidential informant. Subsequently, Fonseca filed a motion, in which the Government joined, asking this court to unseal the transcript. We now grant the motion and affirm.

3

On May 4, 1986, Officer James Miller of the Salem, Oregon Police Department was contacted by a confidential information who had been cooperating with the Department for the past two years. The informant told Officer Miller that Antonio Hernandez, whom the informant claimed to have met in Stockton, California, was trafficking in narcotics. Miller called the Stockton Police, who told him Hernandez was "a known dealer of heroin."

4

Several weeks later, on June 21, 1986, the informant called Miller and told him that Hernandez and another man would be traveling to Medford, Oregon to sell some heroin. At 3:00 the next morning, June 22, the informant called Miller again, advised him that he had spoken to Hernandez on the phone, and that Hernandez had said that he and another man would drive from Medford to the Portland area sometime that day to sell the informant roughly 500 grams of heroin.

5

At 7:30 p.m. that day, the informant again contacted Miller. He told the officer that Hernandez and the unidentified companion would be driving south from Portland to Salem on I-5 in a black Pontiac Firebird with California license plates. The informant also told Miller that he had told Hernandez to take the Market Street southbound exit in Salem and then call him from a pay phone.

6

Miller then drove north on I-5 to a spot several miles beyond the Market Street exit in order to wait for Hernandez. At about 8:15 p.m., 45 minutes after the informant's call, Miller saw two men in a black Pontiac Firebird with California plates traveling south on I-5. Miller radioed ahead to other officers, and then saw the Firebird exit at the Market Street off-ramp. It stopped near a telephone booth, pulling up next to one of the undercover agents on the lookout for the vehicle. Neither man got out of the Firebird; they pulled away and drove into a motel parking lot. There they were detained by police while Miller and a Drug Enforcement Agent searched the car. They found approximately 560 grams of heroin.

7

On July 8, 1986, a federal grand jury returned a one-count indictment against Hernandez and his companion, appellant Enrique Fonseca-Martinez, for possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1). Fonseca filed a motion to suppress, which was scheduled for a hearing on September 3, 1986. He also filed a motion to reveal the contents of communications between the confidential informant and defendant Hernandez.

8

Fonseca failed to appear for his September 3 hearing, and a bench warrant was issued. The next day, the district court ordered the Government to produce its confidential informant for an in camera hearing; the court later filed an order revealing certain information obtained during its in camera hearing that it deemed useful to Fonseca for his defense, but denied Fonseca's motion to reveal the balance. The court did not disclose the identity of the informant.

9

On October 16, 1986, an indictment was filed charging Fonseca with failure to appear under 18 U.S.C. Sec. 3146. He was subsequently rearrested on April 3, 1987. A hearing was held on his motion to suppress on July 20, 1987; the district court denied the motion. Following a bench trial on August 10, 1987, Fonseca was found guilty on both counts. On September 16, the district court sentenced him to three years imprisonment on the possession charge and one year on the failure to appear charge, to be served consecutively.

DISCUSSION

10

We have jurisdiction over appeals from final federal convictions pursuant to 28 U.S.C. Sec. 1291. Since the Supreme Court's decision in California v. Carney, 471 U.S. 386 (1985), we have held that, under the automobile exception to the warrant requirement, "an automobile parked in a public place may be searched without a warrant so long as police have probable cause to conduct the search. United States v. Bagley, 772 F.2d 482, 491 (9th Cir.1985)[.] Nothing further need be shown." United States v. Normandeau, 800 F.2d 953, 957 (9th Cir.1986). See also United States v. Grandstaff, 813 F.2d 1353, 1358 (9th Cir.1987) (per curiam). Thus, we need find only that probable cause underlay the search.

11

"The propriety of a warrantless automobile search is a mixed question of law and fact that we review de novo." Normandeau, 800 F.2d at 957 n. 5. To find probable cause, we must conclude from the record that the facts and circumstances known to police at the time of the search were sufficient in themselves to warrant the belief of a person of reasonable caution that items subject to seizure would be in the place searched. United States v. Freitas, 716 F.2d 1216, 1220 (9th Cir.1983).

12

Fonseca argues that since the tip on which the police relied was provided by an unidentified informant, gave little detail and was not corroborated by any police observation of suspicious activity, Officer Miller lacked probable cause to search Hernandez's vehicle. The district court found the informant's tip sufficient to establish probable cause.

13

Under Illinois v. Gates, 462 U.S. 213, 238 (1983), reviewing whether an informant's information supports probable cause calls for a "practical, common-sense decision" as to whether the totality of the circumstances gives rise to a fair probability that contraband or evidence will be found in the identified place. Both the reliability and the basis of knowledge of the informant are "highly relevant" to finding that his information is of value. Gates, 462 U.S. at 230; United States v. Moreno, 758 F.2d 425, 427 (9th Cir.1985).

14

In Gates, police received an anonymous letter telling them that the Gateses, a local couple, made their living selling drugs, and describing their complex modus operandi. Based on later surveillance of the Gateses' suspect behavior, which bore out the letter's description, police obtained a search warrant and found 350 pounds of marijuana in their trunk. The Supreme Court upheld the search, noting that the officers had corroborated a considerable amount of suspicious activity. Gates, 462 U.S. at 243. The Court further stressed the importance of the detail and accuracy of the informant's allegations, which forecast "future actions of third parties ordinarily not easily predicted." Id. at 245. Although there had been no showing as to the informant's general reliability, his information seemed accurate enough that the Court found it "not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities." Id.

15

This court has had several occasions to review the adequacy of an informant's tip under Gates. In United States v. Woods, 720 F.2d 1022 (9th Cir.1983), an informant of proven reliability told police that he had heard that a narcotics sale would occur within a week or two. The morning of the arrest, the informant told police that one defendant would be going to the airport with her son, both of whom he described, and said they would meet a plane arriving around noon and would consummate a cocaine transaction with an arriving passenger. The arriving supplier would take a return flight the same day, he said.

16

The police, having set up surveillance, observed a rendezvous take place just as the informant had described would occur. A subsequent warrantless search turned up cocaine. We upheld the district court's finding of probable cause based on what the police knew at the time: they had information from a reliable informant; he had earlier identified the defendants as dealers who had sold to him; he advised police two weeks before the arrest of an upcoming shipment; and he predicted the day of the arrest that a sale would occur and gave details of the deal. Id. at 1027-28. Since every observable prediction in the tip came to pass, we were satisfied that probable cause underlay the search. Id. at 1029.

17

In United States v. Fixen, 780 F.2d 1434 (9th Cir.1986), police corroborated an untested informant's prediction of a forthcoming drug deal; they saw the defendant meet a man the informant had described, and watched the two engage in conduct suggestive of a drug buy. In upholding the search, we noted the importance Gates and Woods had attached to police corroboration of tips, and singled out the importance of the specificity of predictions that, in fact, come to pass, in establishing probable cause.

18

In this case, the verified prediction was not as specific as those in Gates, Woods or Fixen. Police corroborated only one predicted event--that a certain car (black Pontiac Firebird with California plates and two male passengers) would exit the freeway at Market Street and would stop to make a phone call. Nor can the Government point here, as it could in those cases, to any suspicious behavior by Fonseca or Hernandez suggestive of criminal activity. Since "activities innocuous in themselves are entitled to much less weight as corroboration than incriminating ones," Freitas, 716 F.2d at 1223, the confirmed prediction in this case, without more, would not establish probable cause.1

19

The corroboration was not all the Government presented, however. It also made a showing as to the informant's reliability and basis of knowledge that was at least as strong as that in Woods and considerably stronger than those in Fixen and Gates. Although the Government did not offer evidence in open court on this point, the district court satisfied itself as to both the informant's reliability and his basis of knowledge by means of an in camera examination of the informant. We have repeatedly approved of this procedural compromise, by which "the government can be protected from any significant, unnecessary impairment of necessary secrecy, yet the defendant can be saved from what could be serious police misconduct." United States v. Moore, 522 F.2d 1068, 1073 (9th Cir.1975); see also Fixen, 780 F.2d at 1439; United States v. Kiser, 716 F.2d 1268, 1271-73 (9th Cir.1983). Particularly in those cases where a warrantless search is challenged, an in camera hearing to interrogate an informant may be the only reliable means that the district court has to determine whether the police had probable cause at the time the search was made. The transcript of such a hearing facilitates adequate review by the appellate court as well. The hearing can be of considerable help in insuring against post hoc fabrication. In this case both the district court and this court were able to verify that the police, in fact, relied on an informant who provided critical information and that he was well known to the police over a period of time and was reliable.

20

The transcript of the in camera hearing reveals that the informant had been cooperating for ten years with the U.S. Customs Service and for two years with the Drug Enforcement Administration and the Salem police. His testimony included a detailed account of the basis of his information and thoroughly supported the Government's version of the facts.

21

A strong showing as to one factor in the assessment of probable cause may compensate for a deficiency in another factor. Gates, 462 U.S. at 233; Fixen, 780 F.2d at 1438. We find that the in camera evidence of veracity and basis of knowledge was sufficiently great to overcome the incapacity to corroborate more than limited predictions that were just as consistent with innocence as guilt. Viewing the totality of the circumstances, we hold that the information known to the police constituted probable cause for the search.

22

AFFIRMED. The transcript of the September 4 hearing is hereby unsealed and the case is resubmitted.

*

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

1

The Government argues that the Stockton Police Department's affirmation that Hernandez was "a known dealer" provided partial corroboration. This is weak corroboration at best. The simple assertion of police suspicion, without factual grounding, plays no role in establishing probable cause. Freitas, 716 F.2d at 1221 n. 4